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Bilingual judges: someone is sure missing the point

By the terms of Bill C-232, legislation adopted by the House of Commons requiring all appointees to the Supreme Court to be fluent in both official languages, one is obliged to ask whether those who passed it knew what they were voting on. Many if not most of the 140 MPs who voted to make the judges bilingual would not, after all, qualify for that description themselves, at least to the level the bill requires, that is of being capable of working in either language “without the assistance of an interpreter.”

How, then, can they be sure the French version of the bill is the same as the English, or the English the same as the French? Both versions are of equal weight and force. How can they fully grasp the implications of the law they are being asked to pass, if they understand only one version? With the assistance of an interpreter, that’s how. Somehow Parliament survives.

Yet, what is good enough for Parliament would, if the bill passes the Senate, no longer be good enough for the Supreme Court. The court itself has always been bilingual, in the sense that anyone appearing before it has the right to plead his case in either official language. Yet, only a small minority of the judges themselves have ever been fluent in both. To hear evidence in the other language they rely on interpreters. If there has ever been a single miscarriage of justice to arise from this, I have not heard of it.

That’s not the point, say proponents of the bill. Those who appear before the court should not only have the right to give evidence in their own mother tongue, but to be heard in it: interpreters, they say, sometimes miss little nuances of meaning. Moreover, the indignity of interpretation in practice falls mainly on French-speaking appellants, since it is the court’s English-speaking judges who tend to be unilingual, while the francophones are more commonly bilingual. The same argument is heard with regard to deliberations amongst the judges themselves. If even one unilingual English judge is present, it is claimed, the discussions take place wholly in English.

This is more than a question of fairness, they insist. It should also be viewed as a matter of competence. A judge who has not read French jurisprudence in the original is not fully versed in the law. A judge who cannot hear or discuss evidence without a translator is likewise handicapped, incapable of giving the same level of service to the court as his bilingual colleague. In the words of one commentator, “language is a part of ability.”

All well and good—were it not that the two arguments, fairness and efficiency, tend to contradict each other. The complaint, after all, that bilingual francophone judges are expected to work in both languages while their English brethren are not, rests on an unstated but crucial premise: working in a second language is harder. Nobody’s perfectly bilingual, especially at the high level of fluency required for Supreme Court work. Even bilingual judges think, write and speak better in their first language. To the extent that working in a second language is an imposition, it’s also inefficient.

Moreover, it cuts both ways. Efficiency costs occur not only when a judge is forced to speak in his second language: the same is true of the judge who has to listen in his. The same minor breakdowns in communication, the same small losses of nuance and dropped meanings, apply. Ensuring that French-speaking judges can speak in their first language can only mean obliging English-speaking judges to listen in their second. How is this progress?

Suppose there are three French-speaking judges on the court, and six English-speaking. All are bilingual, as the bill requires. Suppose, further, they agree to deliberate in English two-thirds of the time, and French one-third. And suppose, for the sake of computational ease, they work a nine-hour day.

Under the status quo, where all discussions are carried out in English, the three French-speaking judges would have to speak or listen in English for nine hours: a total second language exposure (SLE) of 27 person-hours. But under the revised process the SLE score rises to 36: while the three French-speaking judges would only have to work six hours in English, the six English judges would now be spending three hours working in French.

If instead they split the time 50-50, total SLE rises to 40.5 (you can do the math yourself). The point is, the more judges you have working a greater percentage of their time in their second language, the greater the aggregate comprehension loss. Far from improving the judges’ collective ability to hear and discuss difficult cases, the opposite would be the case. Requiring all judges to be bilingual may distribute the burden of adjustment more fairly, but at greater costs in missed nuances.

Which leaves us with the arguments of the bill’s critics, and competence issues of a different kind: the dramatic shrinking of the talent pool, especially in the western provinces, that must inevitably follow if bilingualism is made a condition of selection to the court. The implications are alarming—not only a general decline in the quality of the judges, but the effective exclusion of the West from consideration. That would be hard to justify even if there were some great injustice in the present set-up, or if mandatory bilingualism were likely to remedy it, but as it is it seems clear the cure is worse than the disease.

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Bilingual judges: someone is sure missing the point

So now the qualifications for judges will be based more on their language skills than their knowledge of the law?
If you disqualify all non-bilingual judge candidates based on lack of language skills, might we not loose the best at the law?

"Let's just review, shall we? 89% of all political donations made by federal judicial appointees in Ontario since 1993 went to the Liberal Party of Canada. 92% of all political donations by federal judicial appointees in Quebec went to the Liberal Party of Canada. More than 60% of all federal judicial appointees in Ontario, Quebec, Alberta, Saskatchewan and Manitoba since 2000 donated exclusively to the Liberal Party of Canada in the three to five years before their appointment. Notice a pattern?" Andrew Coyne, January 19, 2006

When was knowledge of the law ever a qualification for judges?

Nice that msm analyzes 'qualifications' of potential judges being left out because they don't speak English/French but msm leaves out main qualification for getting appointed is.

I'm always impressed that QP translators are able to convey nuances in their very challenging task of French to English translation in the often fast-paced environment of QP, so it seems to me that the 'nuance' argument isn't all that strong.

Perhaps you've missed several matters of privilege recently brought up by the Conservatives over verbiage by the Bloq. It has entirely to do with translators choosing one word over another during question period, and consequently hours of wasted time of both parliament and the Speaker having to hear the matters seeing as how he has ruled against all of them except the most recent which are under review.

I have missed those matters of privilege (I tend to tune out once it gets to that point), but given the predilection of the Conservatives to see insult/injury where there is none I have to wonder whether it's a case of arbitrary translation or of making an issue out of something that doesn't exist. I would expect that in a setting like the Supreme Court, where statements are carefully framed so as to present a case or defence in the clearest possible terms, the translation process would be anything but arbitrary.

I believe if you scroll down just a wee bit to I. Hall's comments he has done a fair job of citing examples where the clearest possible interpretation was not provided by the interpreters, other examples are available.

I agree with Andrew's analysis. This is a very bad law and will see the quality of the Supreme Court diminish over time. Yet we have the feckless leader of the official opposition supporting the bill without realizing its implications for the whole country. He simply wants to pander for the Quebec vote. Unfortunately for him voting for this bill will not help him buy votes in Quebec. Its sad really. Watching our country continually being divided along linguistic lines. Iffy says he is a uniter. Yeah right. Look at his leaderhsip polls now down to 11%. Canadians really believe that (sarcasm intended).

There is one assumption made in the article I don't agree with. Andrew surmised that if a person is bilingual they still think in only one language. I can only speak for myself, and admittedly I'm bilingual in Dutch and English, not French, I think, and from time to time even dream, in both languages depending on the context. In other words when I'm speaking Dutch, I think Dutch, when I speak English I think English. So to do the math, if the courts were hearing cases in the two languages I'm reasonably fluent in, I would have 0 hours spent on SLE.

Fair enough, blame Dutch as being my first language, and me missing the nuance of your post. Kidding aside, and maybe the difference is I don't think of either of my languages as being my first and I don't think better in one language or the other.

I do find your comparison between the House of Commons, and how very few of them would qualify for the job of Judge of the Supreme Court based on there language qualifications laughable. Let's be honest, how many of our current MPs would you want sitting on the Supreme Court? I can think of 3 or 4, but I'm pretty certain they are already bilingual. Further to this you are comparing an elected body of over 300 people to that of an appointed body of 9 appointed people. Considering that the Supreme Court is the highest court of Canada and is the final court of appeal in the Canadian justice system it doesn't seem unreasonable that should be able to not only hear arguments in both official languages but understand them as well.

The supreme court of an officially bilingual country must be bilingual … WHY is that such an outrageous concept … presumably these are learned people sitting on the court … I'm sure functional knowledge of both official languages is not beyond their capabilities … french and english is taught in our elementary schools … this debate is just another distraction … right up their with 'the veil' debate … take the politics out of responsible governance and move on to issues that really matter …

chevymo…..because the politicans state the country is bilingual does not make that the reality on the ground. It was done without the consent of all Canadians through referendum. As well when you look at the demographics of the country it is overwhelmingly English or other languages other than French. The debate is not a distraction. Its about a minority language group trying to push their language on the institutions of this country and of course pandering for votes in Quebec.

What happens when the seats allocated to the West on the Supreme Court are left vacant because of not being able to find qualified jurists who are also bilingual to the extent that the new law would demand.

It is just not a matter of taking a few French lessons and you are being disingenuous and in fact insulting to the French language by making such a claim. The bill calls for the Supremes to be fully bilingual which goes beyond just simply being able to hold a conversation in French.

If we can find several bilingual MPs from the West, I'm sure we can find several lawyers/judges as well. And even if they are not bilingual now, they can start working on it, and by the time a vacancy comes around, there will be more candidates to draw from.

You don't learn a language overnight, but these people all went to Law school, and that's no walk in the park either. And it's actually easier to understand something in a second language that's in your area of expertise than it is to carry on small talk.

I absolutely agree. The quality of the judges will be reduced not only be the fact that many will have to think in a 2nd (or maybe worse) language, but some of the more qualified judges who are speak just one language will be rejected for less qualified candidates. To say that translators wouldn't be able to pick up the nuances of those who appear in court is ridiculous. I may be wrong about this (I'm no expert), but I believe that to be a translator in court, you have to be extremely comfortable speaking and understanding both languages.

I really liked the way this article was written and the way the facts were presented. The second language mathematical analysis was something I wish people would do more often in other topics.

Great argument. I think the problem, though, is that the bill's most vocal proponents aren't trying to minimize SLE, but rather ELE (English Language Exposure). Using that metric the bill is a vast improvement.

Advancing the equality of status and use of English and French is a fundamental value. Since at the moment, English is usually in a better position than French, that does mean that actions in favour of equality will often benefit French more than English. I don't think that's unfair. When bilingualism was brought in, we all understood that it was French that had the most catching up to do.

When, pray tell, are we going to call Quebecs bluff and invite them to go their separate way? …not until they screw up what little is left of the country that was first envisaged by our founders, it appears!

I still have one question that no one seems to address. If the concern is that the bilingual translators often miss the nuance of language when translating, why do we believe that the bilingual judges won't?

I am bilingual myself, and can understand basically anything that is said in French. But I could never do what these interpreters do. To be hired at the Supreme Court, I'm sure they have to be among the very best.

If I were an interpreter, my problem would not be failing to understanding the nuances. It would be not thinking of the right way to translate them fast enough, and falling behind. At that point, I might miss stuff that was said, and end up not translating it at all, which I think is basically the worst possible outcome.

I'm positive that the court interpreters are far better than I would be, but when they do miss things, I'll bet it's something like that that's happening.

An important point is that it is quite common for people to reach a level of ability where they'll understand everything, but are not completely at ease speaking the language. People like this would qualify under Bill C-232, because it requires only understanding, not speaking, both languages.

John Major, who is arguing against Bill C-232, made an analogy with a surgeon. He said, if you're going to have surgery, do you want the best surgeon, or do you want someone who can tell you about it in either language?

A proponent of C-232, I can't remember who at the moment, replied that the analogy is false, because it is words that are the judge's scalpel.

There's a lot of truth in that. The law is very much about words, and hence language.

Yes. The problem with the argument, however, is that a judge's use of words is secondary to his use of judgment. The primary function is judgment, the secondary function is clear expression of that judgment such that other judges can follow the argument and use it as precedent.

Good judgment only uses words insofar as arguments and laws must be understood prior to weighing them. For this an interpreter is sufficient. Clear expression of that judgment can be done in the judge's first language.

Therefore it seems to me that while language skills are important for a judge, they are not the primary skills required in a judge. Therefore we should pick judges for the primary skill of rational judgment and sound legal understanding, not linguistic skills.

The advantages of a bilingual court are many in my opinion, and I talked about them earlier. I think that if this were 1960, then perhaps we couldn't afford to insist on bilingual judges.

But at this point there is in all likelihood relatively little trade-off with other aspects of judicial competency. Please see the quote from Joe Comartin above. Let me also quote former Supreme Court Justice Claire L'Heureux-Dubé directly from her interview with Radio-Canada:

Q: Those who are against it say that if we require bilingualism, we'll have to turn our backs on possibly very competent judges that the Supreme Court needs because they don't speak French.

A: I don't buy that argument. First of all, there is no evidence to that effect. I know bilingual judges in Manitoba, the Monnins, in Saskatchewan, Madam Justice Jackson, who have been on the list of possible appointments. So there are excellent judges in Canada who speak both languages.http://www.radio-canada.ca/nouvelles/National/201…

By any measure, a great judge who needs only to learn French remains much closer to being appointed to the Supreme Court than would be a person who is bilingual, but knows nothing of the law. The reason is that people with that kind of intellect are in most cases perfectly capable of learning to understand another language. A handful might not be, but at this point having a bilingual court is such an advantage that we just have to say "too bad".

I. Hall on May 10, 2010 at 5:18 pm

It made me chuckle when I read L'Heureux-Dubé referring to "that kind of intellect". Having read some of her judgments, I have a lot less regard for "that kind of intellect" than she does.

But anyway, to address her points rather than the person making them,

(1) The fact that there are excellent judges who are bilingual is irrelevant. The point is that the best judges, i.e. the ones we would like on the SC, will not always be bilingual. This is a logical certainty, based on the facts that (a) bilingualism is very rare in certain parts of the country, and (b) judicial competence is not concentrated in Quebec and Ontario. Therefore the new requirement will certainly force us to substitute "excellent" judges for "the best" judges in some cases.

(2) Learning French is indeed something most highly skilled judges could do, and I encourage them to do it, but it is not a requirement to do their job effectively. It is therefore a matter of injustice that they would be required, rather than encouraged, to do so.

Sorry, I should have made clear that the second paragraph was mine, not hers. "That kind of intellect" were my words.

I. Hall on May 10, 2010 at 5:58 pm

I think she and Comartin address directly your contention that bilingualism is "very rare" in some parts of the country, in her case by naming top-level judges who were actually in contention for seats on the Supreme Court.

My other point is that by now, the difference in calibre between "excellent" and what you call "the best" is not worth the effect of preventing the court from being bilingual, for the reasons I listed above. The functioning of the court is currently being affected significantly by having just one unilingual justice.

I don't think requiring justices to be bilingual would be any more of an injustice than requiring them to be distinguished lawyers.

I. Hall on May 10, 2010 at 6:08 pm

For the same reason international courts have language requirements. In a bilingual or multilingual setting, it's not enough to have a great mind if you can't communicate with people, or people can't communicate with you.

In Canada, turning a federal institution into a de facto unilingual one is also a no-no. The Charter says:

16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.

Most Canadians consider this a fundamental value. Even if some don't, it's part of our Constitution and is a fundamental political compromise no one can now turn their back on.

I'm afraid Mr. Coyne is the one missing the point. Supreme Court judges do not do the same thing as MPs, so for instance MPs do not need to be lawyers or former judges and members of the Supreme Court do. The Supreme Court has to interpret subtle details of laws written only in French or only in English, and of laws where both language versions are equally valid. If we are now going to rely on interpreters to figure out these subtleties of meaning and convey them, then maybe the interpreters are better qualified to be judges than the people on the bench. As to whether there have been miscarriages of justice, just ask any lawyer who has pleaded in French and then seen the interpreter's version, and they will tell you that the arguments that the judges heard were not the same as the ones they made. There's no way to figure out whether there was a miscarriage of justice because there is no appeal possible to correct these mistakes.

If you go to any provincial court or even a lowly administrative tribunal in Ontario or other provinces where both official languages are allowed, it is very unusual for the judge to not understand the evidence is in the language in which it is presented. Do we really have lower standards for the Supreme Court than we do for parking tickets and zoning disputes?

If it ain't broke, don't fix it. And it ain't. Furthermore, if you try to fix something that ain't broke, you usually end up with something worse, often far worse. If you limit the pool for qualified jurists by a magnitude of ten or twenty (or a hundred, out here in the redneck west), you are highly likely to end up with at least a justice or two who in short order will demonstrate their lack of other far more pertinent qualifications, albeit in beautiful fluent French.

"Advancing the equality of status and use of English and French is a fundamental value. "

No, it isn't. Advancing the cause of justice for all is a fundamental value. Advancing the status of one or another language is triviality. A language is just a vehicle by which we express ideas. What matters is the ideas, not the vehicle.

I contend that the equality of English and French is fundamental Canadian value.

First, it is enshrined in law, both in sections 16-22 of the Charter and in the Official Languages Act. Section 2 of the Act reads:

2. The purpose of this Act is to
(a) ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions, in particular with respect to their use in parliamentary proceedings, in legislative and other instruments, in the administration of justice, in communicating with or providing services to the public and in carrying out the work of federal institutions;
(b) support the development of English and French linguistic minority communities and generally advance the equality of status and use of the English and French languages within Canadian society; and
(c) set out the powers, duties and functions of federal institutions with respect to the official languages of Canada.

Second, there is a political consensus that bilingualism is a fundamental value of Canada. No party that claims to represent all Canadians disagrees. On their website, the Conservative Party list the following among their "founding principles":

Yes, you are right as to the law and the perception. Also, I applaud your informative and well-reasoned responses. Nonetheless, our problem stems from a different understanding of the term "fundamental". To me, fundamental means "at the foundation", i.e. at the very basis of human nature. If bilingualism were fundamental in this sense then it would also be universal to all, not just Canadians. The very fact that you have to qualify it as a "Canadian value" means that it's not fundamental.

Now as to whether it's an important Canadian value, as you've made clear it is in law and perception. I don't believe it should be, however, since language is merely a tool for the expression of ideas. What matters is the ideas, not the tool used to convey them.

I notice that you've replaced the original subtitle "Ensuring that French-speaking judges can speak in their first language means obliging English-speaking judges to listen in their second", which could easily have been interpreted as an argument against your viewpoint, with "What is good enough for Parliament would no longer be good enough for the Supreme Court" which at least has the merit of being an argument in the right direction.

But as I said above (in 7), democracy means that the electorate has the ultimate right to decide who is qualified for Parliament. The electorate may decide bilingualism is important, but the decision is its own. Only countries like Latvia (which wants to exclude as many Russian-speakers as it can from sitting in its parliament) impose mandatory language requirements on parliamentarians. So for better or for worse, we're stuck with simultaneous interpretation.

With judges, of course, the issue is one of merit, not democratic elections, so if we feel bilingualism would make for a better court, we have every right to impose it, just as we impose that candidates be qualified lawyers. What is a necessary shortcoming of Parliament is an unnecessary one for the Supreme Court.

Bilingualism in Canada is both a lie (it doesn't exist in Canada except by force) and a huge waste of time and resources. For what? So Quebec, who haven't signed the Constitution, will stay in Canada? (are they even in it?)
As a nation we need to accept we are not and never will be a bilingual country, it isn't even a good idea, and lets end the nonsense right now. Quebec would leave? Not likely but even if they did what would change? The already have their own civil law, language, control over immigration, resources, their own public pension plan, their own Health Care, and a Billion dollars in transfer payments on top of EI, regional development grants and other monies. In fact the only thing the Federal Government has control over (in theory) is defence and foreign affairs. In fact, NAFTA only happened after Quebec decided it was a good idea and Mulroney flip flopped on being against it. Remember?
What do the rest of Canada get from Quebec? Go ahead, mention something.

I don't agree with the bla bla. A Supreme Court judge should be fluently bilingual in both official languages, period. To all law students hoping to make the big league, I say learn French, what's the big deal. If it's lack of immersion, just do a series of practicums in Chicoutimi, or Québec, or Paris, whatever. It will broaden your horizons and culture, and will make you a better judge.

Simultaneous interpretation is an extremely difficult task. Your brain has to literally perform two functions (listening in one language and speaking in another) AT THE SAME TIME. You have to search for the right words really quickly, and at the same time not lose track of what the speaker is saying.

Compare that to listening attentively to a lawyer arguing a case, which is much easier.

I have a huge amount of respect for the interpreters at Parliament, and I think they do a great job, but that doesn't mean they get every thing right all the time, because that's pretty much impossible.

Yeah, but simultaneous interpretation is far more difficult than just listening to a case being argued. The interpreters would have no problem at all with just listening. It's the intensive work of listening to one language while translating into the other while still listening to what the speaker is saying so you don't lose track that's really hard.

I didn't hear that particular radio program. But I have seen discussion of the issue on TV on Radio-Canada.

I think the point of most of the criticism is precisely that the job of a simultaneous interpreter is very difficult. What is being argued is that even with the most competent interpreters, some things will inevitably be lost.

I believe it is entirely possible to (simultaneously) have the highest respect for interpreters and also try to understand what some of the shortcomings of interpretation are.

And even in cases where criticism is directed at particular slip-ups by interpreters, I think it is fair criticism, even though it may well be embarrassing. It makes the point that it is inevitable that some serious mistakes will happen. Even the best people will always have off days.

I get the practical idea that the talent pool in the west will be smaller if the bill passes, but we won't advance bilingualism in Canada by encouraging low standards out here. I say this as a Calgary lawyer. A good compromise is that a candadate should show a willingness to learn the second language within say 10 months. 3 months of immersion and some follow up after that should do it.

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